[Congressional Record Volume 154, Number 92 (Thursday, June 5, 2008)]
[Senate]
[Pages S5182-S5188]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FOOD, CONSERVATION, AND ENERGY ACT OF 2008
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of H.R. 6124, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (H.R. 6124) to provide for the continuation of
agricultural and other programs of the Department of
Agriculture through fiscal year 2012, and for other purposes.
Mr. CHAMBLISS. Madam President, I believe under the unanimous
consent, Senator Harkin and I have 10 minutes equally divided, Senator
Coburn has 20 minutes, Senator DeMint has 30 minutes; is that correct?
The PRESIDING OFFICER. I believe the Senator is correct.
Mr. CHAMBLISS. At this time I believe Senator Coburn requests the
floor.
The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
Mr. COBURN. Madam President, I appreciate the cooperation of Senator
Harkin and Senator Chambliss on allowing us to have some discussion on
the farm bill. The attempt was made to pass this by unanimous consent.
Unanimous consent means that every Senator in the body agrees with the
bill, agrees it should be passed, agrees it should not be amended, and
should not be debated.
I will offer no amendments in working with Senator Chambliss and
Senator Harkin. However, I think it is very important, especially in
light of
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the recent WTO ruling which allows Brazil to administer approximately
$5 billion in punitive penalties on American products going to Brazil
because we are WTO noncompliant. I come from a farm State and I want to
tell you I think this bill is not good for my farmers. As a matter of
fact, I know it is not good for my farmers, especially when we think
out in the distance.
Input costs have more than doubled for production agriculture in this
country and the assumption--not implicitly, but nevertheless in this
bill is the assumption of good prices in the future. Anybody who has
been around farm community for any period of time recognizes that farm
prices are erratic. My thoughts are what do we have in the farm bill
when corn prices are back at $3 a bushel, when wheat prices are back at
$2.50 or $3 a bushel, and when soybeans are back down at $5 a bushel
with input costs doubled? What we have done is we have cut $3.5 billion
from the commodity title in this program.
The one thing that WTO says is compliant is direct payments. We have
cut them by $313 million. I don't want farmers to get anything if they
don't need it, but food is important to us and I do not disagree that
we will use agriculture to help us in our energy needs. But I think in
the long run we have not done what we need to do for the American
farmer.
More importantly, and this is not to degrade the very hard work that
was done by the Agriculture Committee and the conference committee, is
that we have missed an opportunity to be good stewards with Americans'
money. How can that be so? One is the bill extends ethanol provisions
as livestock producers and consumers are struggling to pay for higher
feed costs. It takes 2 pounds of feed to gain a pound of weight in a
chicken. It takes 4 pounds of feed to gain a pound in a hog. So the
input costs on food have risen dramatically.
We didn't eliminate the import duty on ethanol. If we think ethanol
is an important aspect of our freedom in terms of energy independence,
why do we have an import duty on ethanol coming into this country? Why
did we not fix the dollar blending for biofuels, biodiesel? Now large
quantities are coming into this country. A small quantity of diesel is
being blended to it, they are collecting $1 from the Federal Government
and shipping the biodiesel fuel to Europe where they can get more money
for it. What in fact we did not eliminate is the subsidy to European
biodiesel in this bill.
This is basically a food bill, it is not an agricultural bill. Madam
President, 73 percent of this bill goes for food and there are
absolutely no metrics on what we are doing in terms of our food
programs. There is no measurement, there are no performance indicators,
there are no qualifications as to are we meeting the needs? Is the
money we are spending accomplishing our goal? We have no metrics in
that. There are none.
The bill steals money, much to the chagrin of the leaders in the
Senate, for true agricultural programs and puts it into things that are
not agricultural at all. We took $250 million in an earmark in this
bill for the Nature Conservancy to buy land in Montana for one person.
We are constructing a Chinese water garden in Washington, DC, in the
Arboretum, from a gift from the Chinese--but now we are going to pay
for it. We are spending $3.7 million in a noncompetitive grant for the
University of the District of Columbia to upgrade agriculture and food
science facilities. Granted, it is a land grant college. Why should not
it have to compete? How do we know that is the best place to spend the
$3.75 million?
We are spending money, at a time we are going to come close to a $1
trillion deficit, on historic barn preservation? We are going to
preserve falling-down barns at the time we add $3,000 per man, woman,
and child in this country to their debt? We create a farm and ranch
stress assistance network. After this bill they are going to need it.
They are going to need it--especially if crop prices fall. The safety
net is gone.
We have the highest prices historically we have ever had for
asparagus and yet we put $15 million for asparagus prices from 3 years
ago in this bill.
We have $50 million for the Sheep Industry Improvement Center that
has two employees in Washington, DC. It halts a previous law that was
going to privatize the center.
We also have a wonderful study to study methane release from
livestock operations. I would like for us to know, in the natural
physiologic condition of cattle, how we are going to eliminate
flatulence? How we are going to spend money? We know it is there. We
know how much is there based on how many head of cattle there is. We
are going to spend money to study it.
More importantly, this bill offends one of the most cherished beliefs
of farmers and ranchers, and that is property rights--a guaranteed
right in this country is put at risk under this bill. In addition to
the $250 million for the Nature Conservancy to buy more land, this bill
authorizes the Community Enforced and Open Space Conservation Program,
which will give grants to local governments--Federal money; we don't
have it but we are going to give grants--and tribes, to buy up private
forest land and put it into the hands of the Government. We are not
going to have an option. We are going to let the Government agency give
grants and we are going to take land away from private landowners. That
is what we are going to do. That is ultimately what will happen.
We added 100 million acres in Government land in the last 5 years in
this country. We added 100 million acres. What was the purpose for
this? The guise of protecting water supply, hunting opportunities and,
in the bill itself, preventing obesity. We are going to prevent obesity
by buying land.
Finally, the bill fails to rein in the USDA. It is the fifth largest
corporation in the world. It has 115,000 employees--11,000 here in DC.
We are still going to have a top-heavy bureaucracy and we are going to
spend money on the bureaucracy instead of on the production of food,
efficiency in the farm, and guaranteeing that Americans will have a
safe and secure food supply.
This is not to denigrate my colleagues. Most of this they didn't
agree with. They had to trade to keep a half-way commonsense bill, so I
don't want Senator Harkin or Senator Chambliss to think--and I know
through my conversations with them that this is stuff they had to
swallow, coming out of a conference committee. This bill was never
going to be easy. Yet after nearly 2 years of debate, Congress is going
to pass a bill that fails to prioritize agricultural spending in any
meaningful way and what I believe, and it is my opinion, that what in
the future will be is life very much more difficult for the American
farmer and rancher.
Mr. DeMINT. Madam President, in a few minutes the Senate will once
again vote on a farm bill that expands the Federal Government's
management of farm and food programs while spending over $600 billion
during the next 10 years. I do not want to diminish in any way all the
hard work of my Republican and Democratic colleagues and their very
capable staff, but I rise today to ask my fellow Senators to stop and
think about what we are doing to our country--not go just with this
bill but what we have done as a Congress and as a Federal Government
over the last few decades.
The farm bill is a symptom of a bigger problem. We are often so
focused on specific problems and issues and legislation that we fail to
see the cumulative effect of our work over many years. We can start
with what we have done to our culture and the character of our people.
For several decades, this Congress and our courts have turned right and
wrong upside down and encouraged all kinds of costly and destructive
behavior. Our welfare programs have encouraged an epidemic of unwed
births that cost our country over $150 billion a year and is the major
contributor to child abuse, crime, poverty, and school dropouts.
Our courts have ruled that pornography, abortion, and gay marriage
are constitutional rights. The Federal Government has expanded casino
gambling by legalizing it on Indian reservations, even in States where
gambling is illegal. All these decisions and policies have proved
destructive and costly to our country.
The Federal Government's attempts to manage America's institutional
services and economy have been equally devastating. Over the past 10
years, while I have been in the House and the
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Senate, I have seen this Congress attempt to manage many aspects of our
lives and our economy.
I will start with education. The quality of American education has
declined since the 1970s, when the Federal Department of Education was
established. By the year 2000, when President Bush took office, our
Government-run education system was clearly not preparing our children
to compete in the global economy.
No Child Left Behind expanded the Federal role and Federal spending
even more. But there has been little discernible progress. We see some
progress in charter schools and specialty schools and other types of
schools that break away from the Federal mold.
But this Congress continues to restrict the flexibility of States and
the freedom of parents to choose a school that works for their
children.
We should also talk about what this Congress and the Federal
Government has done to our health care system. Medicare and the
Government fixed-rate system control virtually all the health care in
America today. A few years ago, this Congress decided to add
prescription drug coverage to Medicare, even though the program was
already going broke.
Now, the program is hopelessly underfunded, and we continue to cut
what Medicare pays doctors and hospitals to see our senior citizens.
The problem is fewer and fewer doctors want to see Medicare patients
because they lose money when they treat them. So they charge their
patients with private insurance more so fewer Americans can afford
private insurance.
And fewer and fewer students are going into medicine because it is
clear they are not going to be paid enough to make a decent living. So
we now expect and predict a physician shortage crisis as millions of
baby boomers are retiring. The solution for us is to make sure every
American has an insurance plan they can afford and keep, not to try to
manage health care from Washington.
Social Security is another example of Government mismanagement.
Instead of saving the taxes we take from workers for Social Security,
Congress has spent every dime, trillions of dollars. Now, in less than
10 years, Social Security taxes will not be enough to pay benefits to
seniors. Congress refuses to even talk about it.
Let's not forget what the Federal Government has done to our energy
situation in this country. Congressional attempts to manage America's
energy industry have been disastrous. To supposedly protect the
environment, the Democrats shut down the development of new nuclear
powerplants back in the 1970s. So America burns a lot more coal, while
other countries expanded nuclear and reduced their coal consumption.
Now, the Democrats want to add huge taxes on coal to protect the
environment, while still stalling development of nuclear generation. Go
figure. Two years ago, in the name of the environment, this Congress
mandated a massive increase in the use of ethanol and gasoline. Since
then, the price of gasoline has nearly doubled and food prices have
increased dramatically around the world.
Why do I mention all these things that do not appear to relate to the
farm bill? I do it to remind my colleagues and all Americans that this
Congress cannot manage any aspect of our country, and it is not
intended to. Our job is to create a framework of law where freedom can
prevail.
Instead, we attempt to manage where we cannot, and there is no
evidence we have ever created any program that effectively or
efficiently managed any aspect of the American economy or any aspect of
our lives. Why do we continue to produce these massive Government
programs and spend trillions of dollars with the pretense that they
will actually work and make America better?
This Congress reminds me of Steve Urkel from the 1990 sitcom series
``Family Matters.'' Steve and his clumsiness regularly created a
disaster wherever he went. He would always turn around and look at the
destruction he caused and ask innocently: Did I do that?
Well, colleagues, when you look at the price of gasoline, the
condition of our economy and our culture, the answer is: Yes, you did
do that.
America is the greatest Nation in the world. We have been blessed in
ways other nations can only dream of. Yet our future is uncertain. We
face deficits as far as the eye can see. We are staring down the barrel
of a looming financial crisis that threatens to bankrupt our country.
Yet we continue to spend money like there is no tomorrow.
If action is not taken soon, we will reach a tipping point in our two
major entitlement programs, Social Security and Medicare, in which the
programs will pay out more money than they take in.
Our national debt is over $9 trillion today. And still, Washington
will spend over $25,000 per household this year. We are hopelessly
addicted to spending. It is no wonder Congressional approval numbers
continue on a downward spiral. Nobody trusts us anymore, and, frankly,
we do not deserve the trust of the American people because we continue
to blindly spend their hard-earned tax dollars while racking up hedge
debts for our children and grandchildren that they will be forced to
repay.
Now, here we are again, taking a brief break from the climate tax
bill that would cost the American people trillions of dollars to
reconsider another big-spending boondoggle. The farm bill which weighs
in at over $600 billion over the next 10 years, is chock-full of pork
and excessive subsidies for favored and special interests groups.
The bill has numerous wasteful spending provisions. I will name a
few: New programs for Kentucky horse breeders, Pacific Coast salmon
fishermen, and spending to help finance the dairy industry's ``Got
Milk?'' campaign, so we should see more commercials soon.
It increases the price supports for the sugar industry and guarantees
85 percent of the domestic sugar market at these guaranteed prices.
There is a $257 million tax earmark for the Plum Creek Timber Company,
which is the Nation's largest private landowner, and a multibillion
dollar company with a market capitalization in excess of $7 billion.
They are better off than we are as a government.
The language requires the U.S. Forest Service to sell portions of the
Green Mountain National Forest exclusively to the Bromley Ski Resort.
There is $1 million for the National Sheep and Goat Industry
Improvement Center; politically targeted research earmarks for
agricultural policy research centers at specific universities instead
of allowing all universities and colleges to fairly compete for funding
based on merit.
According to Citizens Against Government Waste, this farm bill
includes $5.2 billion annually in direct payments to individuals, many
of whom are no longer farming, without any regard to prices or income,
60 percent of which go to the wealthiest 10 percent of recipients.
From where I stand, this bill looks like another big-spending
Washington, DC, giveaway to special interests. Do we not understand the
mess we are in?
Total Government spending has now reached more than one- third of
America's economy. U.S. tax rates keep getting more burdensome. Our top
corporate tax rate and income tax rate is 35 percent, while Europeans
are undercutting American companies by lowering their rates
significantly.
Recently, a front-page article in USA Today found that American
taxpayers are on the hook for a record $57.3 trillion in Federal
liabilities to cover the lifetime benefits of everyone eligible for
Medicare, Social Security, and other Government programs.
USA Today's analysis went on to point out that this is nearly
$500,000, $\1/2\ million, for every American household. When
obligations of State and local governments are added, the total rises
to $61.7 trillion, or $531,000 per household. That is more than four
times what Americans owe in personal debt such as mortgages.
While we are spending and taxing our way to reelection, many of our
global competitors are lowering their tax rates and streamlining their
economies. Countries such as Ireland are lowering their tax rates and
encouraging economic growth within their borders.
As a result, they are growing their economies and creating jobs. And
we wonder why we are falling behind? We are falling behind because of
political mismanagement. This is what happens
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when politicians think more about their next election than they do
about the next generation. When this happens, it becomes all about us
and not about the American people.
This big-spending farm bill is a perfect example of this kind of
political mismanagement. The leadership of this Congress was in such a
hurry to pass a big-spending giveaway to special interests that they
actually violated the Constitution to do it. Even a schoolchild knows
the Constitution requires the House and the Senate to pass the same
bill and then present it to the President for his signature.
But, apparently, the Constitution is not as important to some as
passing a $600 billion spending bill. The farm bill that was presented
to the President for his signature or veto was not the bill passed by
the House of Representatives and the Senate.
The bill Congress voted on differed materially from the version that
was presented to the President. It contained a whole additional title,
spanning 35 pages, dealing with international aid shipments and foreign
trade. Quite simply, what the President vetoed and what the House and
the Senate held a veto override vote on was not the bill Congress
passed. It, therefore, failed the requirements of the Constitution and
could not be treated as law. That is why we have this new bill on the
floor today.
Regardless of the reasons for this constitutional, I will not say
crisis, but mess, the fact is an officer of the House and an officer of
the Senate usurped the will of the two bodies and materially changed
the content of legislation.
Even worse, by holding a veto override, Congress attempted to make a
bill it never passed the law of the land. This is why I voted
``present'' on the farm bill. Once we were aware of the mistake, we
should have stopped and passed a temporary extension. This abuse of
power or sloppiness may only be the consequence of incompetence, but if
we do not draw the line in the sand and demand that our bills meet
constitutional requirements, what will stop even greater, and possibly
even more malicious, abuses of power?
The Senate needs to reject this bill, pass a year-long extension of
the farm bill, and go back to the drawing board so the policy and the
process are something we can be proud of and that will truly strengthen
our Nation.
We must come to grips with the fact that our actions are hurting the
American people. We cannot continue to spend and spend and expect our
economy to remain strong and free. Already our spending is catching up
to us. I hope we will think long and hard about our actions. What we
are doing will hurt future generations.
I urge my colleagues to vote against the bill. I ask unanimous
consent to have printed in the Record some information regarding
enrollment and the problems we have been having with getting our bills
sent to the President in the correct order.
There being no objection, the material was ordered to be printed in
the Record, as follows:
To: House Republican Members.
Fr: Roy Blunt.
Dt: May 22, 2008.
Re: The Democrat Majority's Farm Bill Foul Up.
We all know that mistakes happen, but it is how you respond
to a mistake once you are aware of it that matters. The
attached memo outlines some of the most disturbing aspects of
how the Democrat Leadership is handling the enrollment errors
surrounding the Farm Bill.
What Did They Know, When Did They Know It, and What Did They
Do About It?:
It appears the Democrat Leadership was informed by the
Office of the Law Revision Counsel and the Committee on
Agriculture that the bill sent to and vetoed by the President
was erroneous PRIOR to consideration of the veto override.
Despite this knowledge and despite requests from staff from
the Republican Leader's office, the Democrat Leadership
proceeded with the veto override of a bill they knew was not
the bill passed by both Houses of Congress.
Importantly, there were opportunities to correct the
enrollment error consistent with past practice and in a
constitutionally sound manner if the Democrat Leadership had
not rushed ahead with the veto override. Once they moved
forward, however, they foreclosed those opportunities.
When confronted on the House Floor by the Republican
Leader, Whip, and Rules Ranking Member, the Majority Leader
defended the Leadership's actions and professed a
constitutional theory that so long as both the House and
Senate had passed the same language, it didn't matter whether
or not the Speaker sent the whole bill passed by the House
and Senate or simply parts of it to the President.
The Dangers of the Democrats' New Theory:
Under the theory espoused by the Majority Leader, the
Speaker of the House can simply pick and choose (either
overtly or as a result of a mistake made by an enrolling
clerk) which parts of final bills to send to the President.
If she is uncomfortable with a provision that was included as
part of a compromise, she could in theory exclude it from the
bill when she sends it to the President.
Importantly, the Speaker's decision to omit language if
challenged by Members of the House through a question of
privilege, can simply be tabled by the majority.
Who Pressured the Enrolling Clerk to Quickly Complete the
Enrollment:
In a memo prepared by the House Clerk on May 21, 2008, the
Clerk asserts that part of the mistake was a result of a ten-
year-old flawed enrolling process, yet she goes on to state
that ``During a review of this process, Enrolling Division
staff expressed a concern in receiving direct calls from
Leadership and the Committee to accelerate the enrolling
process.'' Who pressured the enrolling staff?
____
To: Hon. Nancy Pelosi, Speaker;
Hon. John Boehner, Republican Leader;
Hon. Steny Hoyer, Majority Leader.
Form: Lorraine C. Miller, Clerk.
Re: Farm Bill Omission.
Date: May 21, 2008.
Today's issue with H.R. 2419, Food Conservation and Energy
Act of 2008, was the result of a ten year old flawed
enrolling process. The process did not validate the parchment
copy of the bill against the Committee Conference Report.
Normally when a bill is received by the Enrolling Division
in multiple sections from a Committee, it is assembled,
printed on regular white paper and proofed against the
original Committee Conference Report. Once the bill has been
reviewed it goes through an electronic conversion process and
is printed on parchment paper but not compared to the
Committee Conference Report again. We believe that Title III
was dropped during the conversion process.
The current process of proofing the white paper copy was
adopted ten years ago as a cost saving measure due to the
high cost of parchment paper. That process has been rescinded
effective immediately. We are instituting a new process
whereby we will proofread the parchment copy of the bill
against the Committee Conference Report instead of the white
paper copy. This procedure will eliminate potential issues
with the document conversion process. We have begun a review
of the electronic conversion process to insure that problems
are identified early.
During a review of this process, Enrolling Division staff
expressed a concern in receiving direct calls from Leadership
and the Committee to accelerate the enrolling process. In
order to effectively move the enrolling process of bills, we
strongly urge that all communication is funneled through the
Speaker's Office, thus allowing the Enrolling Division to
have an orderly process.
We are working diligently to make sure it will not happen
again.
____
[From Roll Call, June 5, 2008]
Farm Bill Glitch Stalls House
(By Steven T. Dennis)
Two days before the Memorial Day recess, the House devolved
into chaos Wednesday night over a technical error in the way
the farm bill was sent to President Bush, who vetoed it on
Wednesday morning.
According to House Majority Leader Steny Hoyer (D-Md.), the
enrolling clerk inadvertently omitted the entire Title III
section of the bill after the House and Senate had both
passed it, but before it was sent to the president.
The mistake was not noticed by lawmakers or President Bush
until after he had vetoed it. The House proceeded to override
Bush's veto, 316-108, late on Wednesday.
But House GOP leaders quickly objected, raising
constitutional issues and harkening back to Democratic
protests over a $2 billion enrolling error in the Deficit
Reduction Act signed by Bush in 2006. That action resulted in
a slew of lawsuits.
House Agriculture Chairman Collin Peterson (D-Minn.) said
he hoped his bill would avoid that fate.
``There better not be any damn lawsuits. I'm tired of it,''
he said of the bill.
But Republicans were not so sanguine, with House Minority
Leader John Boehner (Ohio) saying he might even make a motion
to vacate the override vote.
``What's happened here raises serious constitutional
questions,'' Boehner said. ``I don't know how we can proceed
with the override as it occurred.''
``Nor do I think we should proceed with some attempt to fix
it until such time as we understand what happened, what are
the precedents of the House and how do we move forward,''
Boehner said.
Hoyer suggested that leadership from both sides of the
aisle meet to hammer out a compromise with the current farm
bill expiring on Thursday and a one-week recess set to start
Friday night.
Noting that Title III was not controversial, Hoyer
suggested that the House take it up under suspension of the
rules on Thursday and then send it on to the president. He
did not see any constitutional issues at first glance, the
Democrat noted, because both
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the House and Senate passed an identical farm measure.
But House Minority Whip Roy Blunt (R-Miss.) contended that
a president could not selectively veto portions of a bill,
and said such a move raised all kinds of constitutional
questions.
``The concept that we can start sending bills over
piecemeal . . . is a flawed concept,'' Blunt said.
Blunt later told reporters that the House and Senate should
redo the farm bill in its entirety to avoid legal problems.
``I'd like to see a farm bill pass that no judge can say is
not the farm bill,'' Blunt said.
Boehner conceded that mistakes happen, but said that the
House should not have moved forward with an override vote
once the mistake became clear.
``In deference to all Members, we could have waited before
consideration of the override so all Members could understand
what they're dealing with,'' Boehner said.
Peterson learned of the glitch late Wednesday, after
President Bush vetoed the bill.
``For some reason, the machine didn't print it out and
nobody noticed it,'' Peterson said. Peterson said he was told
the president's staff noticed the error after he vetoed it.
Title III of the farm bill, dealing with trade and foreign
aid provisions, was omitted as a result.
Peterson said that they had asked the Parliamentarians if
they could simply re-enroll the bill and send it to the
president, but the Parliamentarians objected.
``After all I've been through, I thought, `What can happen
today? ' Peterson said.
Peterson predicted that the provision on its own would
still have enough support to override a veto, although he
held out hope that Bush might sign it.
Mr. DeMINT. Mr. President, the Constitution requires Congress to
observe certain processes to make statutory law. Contrary to the
apparent assumption of some in this body, Congress does not possess the
power to intentionally ignore requirements provided in the
Constitution's text. Article I, Section 7, prescribes a bicameral
requirement to present a bill to the President. H.R. 2419, as enrolled,
did not pass both chambers of Congress.
The House and Senate passed Farm Bill included Title III. A clerical
error omitted the entirety of Title III in the enrolled bill presented
to the President. The bill sent to the President, no matter the
significance of the error, did not receive the consent of both chambers
of Congress, and therefore fails to fulfill the necessary predicate to
presentment contained in the Presentment Clauses of Article I. In fact,
the measure sent to the President does not qualify as a ``bill'' at all
under Article I, Section 7. I implore the President to disregard H.R.
2419 as an unconstitutional measure, without the status of law.
Despite the dubious status of the Farm Bill, the Majority Leader
assured the Senate that:
We have a good legal precedent going back to a case . . .
in 1892, when something like this happened before. It is
totally constitutional to do what we are planning to do. So
no one should be concerned about that.
The Majority Leader alluded to Marshall Field & Co. v. Clark, in
which the Supreme Court announced the ``enrolled bill rule,'' to
assuage any constitutional consternation held by Senators. However the
Senator from Nevada mischaracterizes the Supreme Court's ruling in
Marshall Field, as the decision relates only to the:
. . . nature of evidence upon which a court may act when the
issue is made as to whether a bill, originating in the house
of representatives or the senate, and asserted to have become
a law, was or was not passed by congress.
The Marshall Field Court did not adjudicate the constitutionality of
an improperly enrolled bill, but rather only reached the question of
justiciability. The Court did not find the issue of constitutionality
justiciable. Marshall Field merely expressed the Supreme Court's
deference to a ``coequal and independent'' department's internal
authentication processes. A bill signed by the Speaker of the House and
the President of the Senate, ``in open session . . . is an official
attestation by the two houses'' that a bill received the consent of
both chambers for the purpose of justiciability.
Marshall Field received renewed attention in recent years as courts
grappled with circumstances similar to those presented by the Farm
Bill. The Deficit Reduction Act of 2005 generated litigation that
challenged the Act's constitutionality because ``it did not pass the
House in the form in which it was passed by the Senate, signed by the
President, and enrolled as a Public Law.'' The litigation did not
provide any ruling on the merits; the ``enrolled bill rule''
promulgated in Marshall Field precluded the district courts from any
examination of ``congressional documents . . . to ascertain whether the
language in the enrolled bill comport[ed] with versions that appear in
legislative sources which precede[d] enrollment.'' The ``claim of
unconstitutionality for a violation of Article I, Section 7, `is not
legally cognizable where an enrolled bill has been signed by the
presiding officers of the House and Senate as well as the President.'
''
The judiciary's reluctance to entertain the merits of claims under
Article I, Section 7 does not bar members of the House and Senate from
consideration thereof. President Jackson explicated the authority of
each branch to interpret the Constitution independently:
The Congress, the Executive, and the Court must each for
itself be guided by its own opinion of the Constitution . . .
It is as much the duty of the House of Representatives, of
the Senate, and of the President to decide upon the
constitutionality of any bill or resolution which may be
presented to them for passage or approval as it is of the
supreme judges when it may be brought before them for
judicial decision. The opinion of the judges has no more
authority over Congress than the opinion of Congress has over
the judges, and on that point the President is independent of
both.
Upon election and in cases of subsequent reelection, every Member of
Congress swears allegiance to the Constitution of the United States in
an Oath. Members ``solemnly swear . . . [to] support and defend the
Constitution . . . [to] bear true faith and allegiance to the same . .
. and . . . [to] well and faithfully discharge the duties of the
office'' to which elected. The Oath of Office imposes an obligation on
Members of Congress to interpret the Constitution and act within its
framework.
The Presentment Clauses of the Constitution require the assent of
both chambers for each bill presented to the President. Article I,
Section 7, Clause 2 provides:
Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a
Law, be presented to the President of the United States; If
he approve he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have
originated . . .
Article I, Section 7, Clause 3 elaborates:
Every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessary
(except on a question of Adjournment) shall be presented to
the President of the United States . . .
The two clauses stipulate ``the exclusive method for passing federal
statutes.'' Bills enrolled and presented to the President must have
received the assent of both the House and Senate, irrespective of
authentication by the Speaker of the House and the President of the
Senate.
So we've had bicameralism without presentment for the engrossed bill.
And we've had presentment without bicameralism for the enrolled bill.
Neither is sufficient. Contrary to the position of the Speaker of the
House and the Senate Majority Leader, authentication of an invalid bill
does not displace the bill's nugatory status; the signatures of the
Speaker of the House and President of the Senate do not represent the
will of the House and Senate and fall short of the bicameral
requirement in the Presentment Clause. Congress may not jettison or
suspend disagreeable parts of the Constitution. The Bill, as presented
to the President, did not receive the consent of both chambers. As
such, the bill is null and void, for it does not meet the requirements
set forth in the Constitution. Shall this Congress crucify the
Constitution on the cross of agribusiness?
Mr. DURBIN. Mr. President, for consideration of this version of the
farm bill, I reference and reiterate the statements I made for the
Record regarding the farm bill's nutrition assistance title when the
Senate overrode the President's veto.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. HARKIN. Madam President, I am sorry we have to be back on the
floor again with the farm bill. I was hoping we might have a voice
vote, since we have all voted on this twice before; I am sure no votes
would change.
[[Page S5187]]
But I did wish to at least explain for the Record and for Senators
why we are here. Now, the Senator from South Carolina talked about the
missing title, and how it rendered the veto override process
unconstitutional.
Well, I am as upset about it as anyone else. I know Senator Chambliss
is too. We are all upset about this. But let me try to put it in
perspective as to what happened. The House passed a bill, we passed a
bill. We got to conference. We worked it all out.
It went to the enrolling clerk in the House. How this happened I
don't know. But somehow the enrolling clerk, in enrolling it, dropped
title III. There are 15 titles to this bill. One title was left out.
For some reason no one caught it. So the bill was held by the enrolling
clerk for 3 or 4 days. The President was overseas. He came back on
Monday night, on May 19th I believe, and the enrolling clerk then sent
the bill down to the White House the next day. The White House didn't
catch it either. The President vetoed the bill, sent it back down to
the Hill. It was only then, before it came up for a veto override in
the House, that it was realized that one title was missing. I don't
believe there was any maliciousness to this. Nothing was materially
changed. When the Senator from South Carolina spoke about this problem,
it sounded as if there was some underhanded effort to materially change
the bill. That was not the case. It was simply a mistake the enrolling
clerk made. Again, why that happened and how, there has been a lot of
talk about that. I don't know. I am fairly convinced that it was an
inadvertent clerical error.
Secondly, I want to correct one other misstatement by the Senator
from South Carolina. When we overrode the President's veto on 14 of the
15 titles, the Parliamentarian basically told us that those titles did
become law. They are the law of the land. So 14 of the 15 titles are
law. What is not law is title III that was left out. It was decided
that rather than only taking up title III and passing it, we would take
the whole bill back, include title III in it, as it was before, and
send it back to the President. That is what we have before us. We have
before us basically exactly what we voted on before, no changes. It is
exactly what we voted on before in the conference report on May 15. I
wanted to make that clear, that nothing has been changed. It is the
same exact bill on which we had 81 votes in the Senate; 81 Members
voted for the conference report that is exactly what we have before us
today.
I wanted to take a couple minutes to underscore the critical
importance of doing this and enacting the missing title. The other
titles are law. It is critical that we enact title III which covers
trade and international food aid programs. These provisions not only
reauthorize but they reform a lot of our programs. As we speak, an
emergency summit on the consequences of high food prices organized by
the Food and Agricultural Organization of the United Nations is
wrapping up in Rome. The specific food aid programs authorized in this
title are the title II Food for Peace program; the Food for Progress
program; the McGovern-Dole Food for Education Program; and the holding
of food stocks for emergency purposes under the Bill Emerson
Humanitarian Trust.
Although authority for most of these programs expired on May 23, a
short-term lapse, as I have talked with the U.S. Agency for
International Development, does not cause serious problems. A longer
lapse, however, would impede our ability to provide food aid. The new
trade title needs to be enacted for these programs to be operational
again. Right now, according to the USAID administrator, we cannot enter
into any new agreements for assistance under the title II program.
USAID has identified need for emergency assistance in Ethiopia and
Somalia, and recently finalized a deal with North Korea for proper
oversight of food aid provided to that country. None of these
activities can move forward until we enact the trade title into law.
USAID wants to provide additional food aid under title II to the people
of Burma in the aftermath of the cyclone, but they can't do that until
we enact this title. Were an event, God forbid, of the magnitude of the
2004 East Asian tsunami to occur or an earthquake or some other natural
disaster, the United States Government would not be able to respond
immediately with food aid unless we pass this title. That is why it is
so important that we do this.
I might also add that the Government Accountability Office had given
us numerous recommendations for reforming our food aid programs. I
won't go through all of those, but there were three basic
recommendations needing statutory changes. All three of those are
addressed in the trade title. All in all, the provisions of this title
are noncontroversial and needed to ensure the continuity of U.S. food
aid and trade promotion programs.
I hope we can complete this debate and get this title enacted into
law as soon as possible.
I thank so much my colleague and friend from Georgia, Senator
Chambliss, for all his hard work on this bill. It has been a long
grind, but we have a good bill. We have a farm bill that is supported
by every major farm organization in the country, a bill that is
supported by emergency food groups, the food banks, the religious
groups. This was a broadly supported bill. It is a good bill. It is
good for our States. It is good for our farmers and ranchers. It is
good for the people of America. I thank Senator Chambliss for all his
hard work in bringing this bill to fruition.
To all Senators, I apologize that we have to be back here again. As I
said, this was a mistake made by the clerk in the House, not by the
Senate. Therefore, we have to be here again.
I yield the floor.
The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Georgia.
Mr. CHAMBLISS. How much time do I have remaining?
The PRESIDING OFFICER. The Senator has 5 minutes remaining.
Mr. CHAMBLISS. I yield 1 minute to the Senator from North Dakota.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. CONRAD. Mr. President, I thank Senator Chambliss for this minute.
I thank the chairman of the committee as well for his leadership in
bringing this bill back because of the unfortunate clerical error made
in the House that necessitates it. I wanted to report briefly to our
colleagues on the budget circumstances, because we have seen
misreporting in the press, and it needs to be made abundantly clear the
budget circumstance we face.
The conference report on the Food, Conservation, and Energy Act that
was overwhelmingly supported on a bipartisan basis in both the House
and Senate is fully paid for over both the 5- and 10-year periods. That
is not my determination; that is the determination of the Congressional
Budget Office. They say over the first 5 years, it saves $67 million;
over 10 years, it saves $110 million. The farm bill is fully pay-go
compliant. It is fully paid for. It does not add a dime to the debt.
The bill is identical to the conference report already passed and
scored by CBO. The spending contained in the original bill has already
been assumed. Therefore, this legislation has no additional cost.
I urge my colleagues to support this legislation. We have passed it
overwhelmingly before. I wanted to make certain that this is in the
Record so it is understood that this bill is fully paid for. It adds
nothing to the debt.
Again, I thank our colleagues: the chairman of the committee, for his
vision and leadership; and to our very able ranking member, the Senator
from Georgia, who has been such a rock as we have gone through this
process. We appreciate so much what they have done. This is good for
the country.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, here we are, as Senator Harkin said,
back again for one more vote on the farm bill. As I told my colleagues
at lunch today, I wish I thought this would be the last one. We may
have one more, if the President vetoes this bill. We may be back here
again. But what a great opportunity it has been to work with Chairman
Harkin and Senator Conrad, who is my dear friend. We became much closer
friends during this process because we spent a lot more time together
than we did with our spouses as we got through final negotiation. What
great assets they have been for American agriculture.
I appreciate my colleague from South Carolina and my colleague from
[[Page S5188]]
Oklahoma. I told them to come down and talk about anything they wanted
to. They talked about the same things we have talked about over the
last three debates on this bill. Is this a perfect bill? It absolutely
is not. Farm bills are always massive pieces of legislation. It is a 5-
year bill. It spends $600 billion over 10 years. I had my staff check,
though, and while I appreciate the comments of the Senator from South
Carolina, the 2002 farm bill spent $800 billion over 10 years. So we
are $200 billion below the 2002 farm bill on a 10-year basis.
Again, it is not perfect. But what it does do is provide a school
lunch program to needy kids as well as kids who can afford to pay. We
are providing food stamps to people in this country who would go hungry
otherwise. We are providing a food bank supplement to our food banks
around the country that provide such great, valuable services to hungry
people in America. We are providing the right kind of tax incentives in
the form of reforming the Endangered Species Act in a positive way. We
have been trying to reform the Endangered Species Act in all of my 14
years in Congress. This is the first time we have been able to do it.
We did it with 250 organizations supporting it. We have good tax
provisions that allow the perpetuation of land so it can't be developed
forever. My children and my grandchildren will have the ability to
enjoy farmland in my part of Georgia that they might otherwise not have
the opportunity to enjoy.
So is it a perfect bill? No. Do we provide a safety net for farmers?
You bet we do. Prices are not always going to be high. We depend today
on foreign imports of oil for 62 percent of our needs. We can never,
ever afford to depend on importing food into this country in the same
percentage that we import oil today.
While it is not a perfect bill, while there are things that, if I had
to write it by myself, I might not have written it this way, overall it
is a very good piece of legislation. It covers a broad swath of
America, from farming to hunger to conservation to measures involving
good tax policy.
With that, I ask for passage of this bill. On behalf of Senator
DeMint, who is not here--and I know a lot of my folks would like to
have a voice vote, but because I know Senator DeMint wants the yeas and
nays, unfortunately, I will have to ask for the yeas and nays on behalf
of Senator DeMint and ask for a recorded vote.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. INHOFE. Mr. President, first of all, let me just speak as a
conservative as we address the farm bill. First of all, I have been
ranked as the most conservative Member, so I don't think I should have
to prove my credentials.
Here is one of the things that people should understand: They should
understand that the vote today on the farm bill was not a vote on this
farm bill or another farm bill; it was a vote on this farm bill or
reauthorizing the 2002 farm bill.
A couple of things that are in here that people should know in a
conservative way are, No. 1, under the previous farm bill that would
have been reauthorized, a farmer could be making up to $2.5 million and
still get subsidies. This takes it down to a half million.
Secondly, the three-entity rule is out in this farm bill. Previously,
someone could be claiming these benefits under three different farms;
now they can't do that. So there are many reasons to vote for this bill
other than those things that people have been talking about during the
debate. I believe that is a conservative vote.
I yield the floor.
The PRESIDING OFFICER. The question is on the third reading and
passage of the bill.
The bill (H.R. 6124) was ordered to a third reading and was read the
third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass?
The yeas and nays are ordered. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden),
the Senator from West Virginia (Mr. Byrd), the Senator from New York
(Mrs. Clinton), the Senator from Massacusetts (Mr. Kennedy), the
Senator from Illinois (Mr. Obama), and the Senator from Virginia (Mr.
Webb) are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Biden) would vote ``yea.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from New Hampshire (Mr. Gregg) and the Senator from Arizona (Mr.
McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 77, nays 15, as follows:
[Rollcall Vote No. 144 Leg.]
YEAS--77
Akaka
Alexander
Allard
Barrasso
Baucus
Bayh
Bingaman
Bond
Boxer
Brown
Brownback
Bunning
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Cochran
Coleman
Conrad
Corker
Cornyn
Craig
Crapo
Dodd
Dole
Dorgan
Durbin
Enzi
Feingold
Feinstein
Graham
Grassley
Harkin
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Martinez
McCaskill
McConnell
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Tester
Thune
Vitter
Warner
Wicker
Wyden
NAYS--15
Bennett
Coburn
Collins
DeMint
Domenici
Ensign
Hagel
Hatch
Kyl
Lugar
Murkowski
Reed
Sununu
Voinovich
Whitehouse
NOT VOTING--8
Biden
Byrd
Clinton
Gregg
Kennedy
McCain
Obama
Webb
Mr. CHAMBLISS. Mr. President, I move to reconsider the vote.
Mr. HARKIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________